Date: 20060825
Docket: IMM-1109-06
Citation: 2006 FC 1027
Ottawa, Ontario, August 25,
2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
DAVID
MODESTE
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision dated January 18, 2006 of
the Refugee Protection Division of the Immigration and Refugee Board (the
Board) which found that the applicant is not a Convention refugee or person in
need of protection. The only issue is whether the Board illegally refused the
applicant’s request for an adjournment so that the applicant could be
represented by counsel, if counsel received approval from legal aid to act on
this case.
FACTS
[2]
The
applicant, a 31 year-old male citizen of Saint Lucia, claimed refugee
protection on September 5, 2005 based on a fear of harm from criminal elements if
returned to his country of origin.
[3]
Before his hearing, the applicant was advised of
his right to counsel:
i. the Board advised the applicant of his right to be
represented by legal counsel by way of a Notice to Appear for a Conference
under section 20 of the Refugee Protection Division Rules, SOR/2002-228
dated October 28, 2005. The Notice clearly instructed that if the applicant
were to retain counsel, he must immediately notify the Board of counsel’s
contact information in accordance with subsection 4(4); and
ii. The Refugee Protection Officer (RPO), who convened the
pre-hearing conference on November 9, 2005 in accordance with his duties under
section 16 of the Refugee Protection Division Rules, advised him orally
of his right to counsel.
[4]
In
December 2005, the applicant was referred to Mr. Midouin, a lawyer who agreed
to act for the applicant if legal aid provided funds. At the applicant’s
hearing on January 17, 2006, an assistant to Mr. Midouin, Ms. Houessou, appeared before the Board and applied to adjourn the
hearing to allow:
i. sufficient time for Mr. Midouin to determine whether
Legal Aid Ontario would pay for
his legal services; and
ii. sufficient time
for the applicant to undergo psychiatric assessment based on Mr. Midouin’s
subjective belief that such evaluation was warranted.
[5]
The
Board rejected the oral application for adjournment, but invited Ms. Houessou to act as the applicant’s counsel for the purpose of the
hearing.
[6]
By
decision dated January 18, 2006 the Board rejected the applicant’s refugee
claim, concluding that:
i. there was not more
than a mere possibility that he would be persecuted on a Convention ground, or
risk to life or danger of torture or cruel and unusual treatment or punishment
in Saint Lucia; and
ii. the applicant’s
oral evidence was not credible in key aspects because it was inconsistent with
his personal information form (PIF).
ISSUE
[7]
The
issue raised is whether the Board breached its duty of procedural fairness to
the applicant by refusing to adjourn his hearing, thereby depriving him of his right
to counsel.
STANDARD OF REVIEW
[8]
The
question of procedural fairness is one the Court must decide as a matter of law
on a correctness standard. See Canadian Union of Public Employees (C.U.P.E.)
v. Ontario (Minister of
Labour),
[2003] 1 S.C.R. 539 at paragraph 100.
RELEVANT LEGISLATION
[9]
The
legislation relevant to this case is the Refugee Protection
Division Rules, SOR/2002-228 and the Immigration
and Refugee Protection Regulations, SOR/2002-227, the
relevant excerpts of which are reproduced following these reasons at Appendix
“A”.
ANALYSIS
Issue: Did the Board
breach its duty of fairness by refusing to adjourn the applicant’s hearing,
depriving him of right to counsel?
(a) Counsel
first consulted one month prior to hearing
[10]
The applicant initially consulted counsel, Mr.
Midouin, in late December 2005. The applicant did not notify the Board that
counsel may act for him. Nor did Mr. Midouin inform the Board that he would act
if the applicant obtains a certificate from Legal Aid Ontario, that he intended to seek an extension of time to file an amended
PIF statement, or that he sought to adjourn proceedings until the applicant
could be examined by a mental health practitioner. Mr. Midouin’s assistant, Ms.
Houessou, informed the Board of these facts for the first time on the day of
the hearing when she made an oral application under subsection 48(3) of the Refugee
Protection Division Rules for an adjournment.
[11]
Ms. Houessou stated that the applicant did not
inform Mr. Midouin of his hearing date until the day before, for which reason
there was insufficient time for counsel to request an adjournment in advance.
The Court finds that Mr. Midouin should have informed the Board of the
applicant’s pending retainer and his correspondence with Legal Aid Ontario following his first meeting with
the applicant in December 2005.
(b) Board
invited, and then considered that Ms. Houessou agreed to act as counsel
[12]
When
the Board denied Ms. Houessou’s request for an adjournment, the Board suggested
she act as counsel for the applicant. Ms. Houessou responded in a tentative
manner, as evidenced at pages 162-163 of the tribunal record:
By presiding member (to
counsel):
[…] So what do you want to do?
Do you want to be an observer? Or the second thing you can do – you have the
choice of either being an observer or if you want to act for the claimant, you
would be allowed to seek clarification once we have asked some questions. If
you think something is unclear from the answers, you can do so on his behalf
and you can ask him questions […] Now, usually when we have a claimant who does
not have a counsel, we ask him at the end of the hearing to make a statement on
his behalf, which we will do of the present claimant. If you want to add
something after that, you would be allowed to do so. So would you like to be an
observer, or would you like to accept this role?
By counsel (to presiding
member):
I think I accept the role.
[13]
The
Court finds that Ms. Houessou did not, and could not act as counsel for the
applicant at his hearing. Ms. Houessou was not prepared to act as counsel at
the hearing, only to request an adjournment. Moreover, Ms. Houessou is not a
lawyer, immigration consultant, or authorized person to act as counsel before
the Board. See section 2 and subsection 13.1(1) of the Immigration and
Refugee Protection Regulations, SOR/2002-227, as amended.
(c) Board’s legal duty to consider
several factors in deciding whether to grant an adjournment
[14]
In
Ramadani v. Canada (Minister of Citizenship and Immigration) (2005), 137
A.C.W.S. (3d) 383 (F.C), my colleague Madam Justice Carolyn Layden-Stevenson
articulated the Board’s duty, before denying an application to adjourn, to turn
its mind to the relevant factors set out by the Federal Court of Appeal in Siloch
v. Canada (Minister of Employment and Immigration) (1993), 151 N.R. 76
(F.C.A.). At paragraph 11 of Ramadani, Layden-Stevenson J. stated:
¶ 11 In my view, the RPD
must, at a minimum, indicate that it has had regard to the relevant factors
enumerated in Siloch, supra, before arriving at a negative decision. Its
failure to do so constitutes a reviewable error. I note that my colleagues
Madam Justice Heneghan and Mr. Justice O'Keefe arrived at a similar conclusion
in Dias v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No.
125, 2003 FC 84 and Sandy v. Canada (Minister of Citizenship and Immigration),
[2004] F.C.J. No. 1770, 2004 FC 1468.
[15]
In
Siloch, as above, the Court of Appeal considered the predecessor legislation
(Immigration Regulations) to the Refugee
Protection Division Rules now in force, and set
out eight factors that may be relevant to the Board’s discretion to grant an
adjournment:
1. whether the applicant has
done everything in her power to be represented by counsel;
2. the number of previous
adjournments granted;
3. the length of time for
which the adjournment is being sought;
4. the effect on the
immigration system;
5. would the adjournment
needlessly delay, impede or paralyse the conduct of the inquiry;
6. the fault or blame to be
placed on the applicant for not being ready;
7. were any previous
adjournments granted on a peremptory basis;
8. any other relevant
factors.
[16]
These
factors parallel those set out in the Refugee
Protection Division Rules. Subsection 48(4) states:
48. […]
(4) In deciding the
application, the Division must consider any relevant factors, including
(a) in the case of a date and
time that was fixed after the Division consulted or tried to consult the party,
any exceptional circumstances for allowing the application;
(b) when the party made the
application;
(c) the time the party has
had to prepare for the proceeding;
(d) the efforts made by the
party to be ready to start or continue the proceeding;
(e) in the case of a party
who wants more time to obtain information in support of the party's arguments,
the ability of the Division to proceed in the absence of that information
without causing an injustice;
(f) whether the party has
counsel;
(g) the knowledge and
experience of any counsel who represents the party;
(h) any previous delays and
the reasons for them;
(i) whether the date and time
fixed were peremptory;
(j) whether allowing the
application would unreasonably delay the proceedings or likely cause an
injustice; and
(k) the nature and complexity
of the matter to be heard.
(d) The
Board’s Reasons for denying adjournment
[17]
The
Board’s reasons for refusing the adjournment are set out at page 3 of its
reasons for decision:
The claimant chose to go
without counsel and had a conference with a Refugee Protection Officer, who
filled him in on the procedure and provided him with a disclosure package
pertaining to his case.
At his hearing, however, a
lady by the name of Sophie Hanouessou [sic] turned up, stating that she
represented a counsel, who is waiting for approval of legal aid but who would then
represent the claimant. She also stated that the counsel had told her that the
claimant, in his opinion, needs psychiatric treatment. She submitted no letter
from counsel, nor did she provide a medical certificate. Since the claimant in
his conference with the Refugee Protection Officer had already told the Board
that he is prepared to proceed without counsel, and did not inform the Board
subsequently that he would or was in the process of retaining a counsel, I
decided to proceed with the hearing. I stated, however, that Ms. Hanouessou [sic]
could act as counsel informally, asking questions of the claimant and also
making submissions on his behalf. I also stated at the outset that though we
were proceeding with the hearing I would evaluate the situation should the
claimant’s conduct make it necessary.
However, the claimant
understood all the questions that were put to him. He provided answers in a
manner that suggested he had understood the questions and had no difficulty in
answering them. There was no evidence at the hearing from the claimant’s
conduct, words or demeanour that he was unable to respond to questions or
provide testimony, or that he did not understand the proceedings.
[…]
Further reasons are disclosed by the Board
in the transcript of hearing (at pages 159-161 of the tribunal record):
By presiding member (to
counsel):
[…] Now, we have had no
indication so far from the evidence that the claimant has any health problems.
The Personal Information Form has not been filled out very diligently, but this
happens in many refugee cases. We have had the letter from the mother, from the
other lady about the fear, but we have had nothing except your statement based
on the opinion of the lawyer who has not informed us of anything about the
claimant’s need to see a mental health specialist. I should point out to you
that even when we have persons under treatment and even if we have persons in
the hospital, we have gone to the Royal Ottawa Hospital. We have gone to various
hospitals and we have had hearings there. In all such cases, we take into
consideration the state of mind of the claimant […] Merely saying that a person
is in need of a doctor does not qualify […]
By presiding member (to RPO):
… [W]e don’t know when this
Legal Aid would be given. We don’t know when he might be able to see a
psychiatrist. I don’t see any evidence here that tells me that we cannot
proceed.
(e) Board
did not consider all relevant factors in deciding to deny an adjournment
[18]
In
applying the eight factors enumerated by the Federal Court of Appeal in Siloch,
as above, the Board only considered two factors:
1) whether the
Applicant has done everything in his power to be represented by counsel; and
2) whether the fault
or blame is properly placed on the Applicant for not being ready with counsel.
[19]
Both of those factors weigh heavily against the
Applicant’s request for an adjournment. However, the Board must consider all of
the relevant factors and did not consider the following factors:
1) the
number of previous adjournments granted (which were none);
2) the length of time for which the adjournment is being
sought (this information was not sought by the Board);
3) the
effect on the immigration system (no comment by the Board);
4) would the adjournment needlessly delay, impede, or
paralyse the conduct of the inquiry and
5) were any previous adjournments granted on a peremptory
basis.
[20]
All
of these factors may weigh in favour of granting an adjournment. The Board does
not appear to have taken these factors into account.
[21]
In my decision Antypov v. Canada (Minister of Citizenship and
Immigration) (2004), 135 A.C.W.S. (3d) 300 (F.C.),
I considered whether the denial of an adjournment by the Board so that the
Applicant could obtain counsel constituted a breach of the rules of natural
justice. In that case, and in much of the jurisprudence where the denial of an
adjournment for this purpose was not considered a breach of the rules of
natural justice, the Applicant had demonstrated a pattern of delaying the
proceedings and had already been granted adjournments on previous occasions. In
the case at bar, this is the first time the Applicant has sought an
adjournment. While the Applicant had ample time to make arrangements for
counsel and was negligent in doing so the Board is still obliged to consider
and weigh these other factors.
[22]
As indicated above, the Board erred in finding that
Ms. Houessou was acting as counsel for the Applicant at the hearing. This
influenced the Board’s decision to deny the adjournment. Ms. Houessou did not
provide the Applicant with his right to legal counsel since she was not
prepared for the hearing, and only prepared to request an adjournment on behalf
of the Applicant’s intended counsel. Moreover, she was not a lawyer or
otherwise qualified under the law to act as counsel. For these reasons, this
application for judicial review must be allowed and the matter referred back to
the Board for redetermination.
[23]
I
am satisfied that this case does not raise a question of general importance not
already decided, so I will not certify a question.
JUDGMENT
THIS COURT ORDERS that:
1. The
application for judicial review is allowed, and the matter is referred back to
the Board for re-determination by a differently constituted panel.
2. No
question of general importance is certified.
“Michael
A. Kelen”
APPENDIX “A”
1. Immigration and
Refugee Protection Regulations, SOR/2002-227
|
Interpretation
2. The definitions in this section apply
in these Regulations.
[…]
"authorized
representative" means a member in good standing of a bar of a province,
the Chambre des notaires du Québec or the Canadian Society of Immigration
Consultants incorporated under Part II of the Canada Corporations Act on
October 8, 2003.
[…]
DIVISION 4
REPRESENTATION FOR A FEE
13.1 (1) Subject to subsection (2), no
person who is not an authorized representative may, for a fee, represent,
advise or consult with a person who is the subject of a proceeding or
application before the Minister, an officer or the Board.
[…]
|
Définitions
2. Les définitions qui suivent
s'appliquent au présent règlement.
[...]
"représentant
autorisé" Membre en règle du barreau d'une province, de la Chambre des
notaires du Québec ou de la Société canadienne de consultants en immigration
constituée aux termes de la partie II de la Loi sur les corporations
canadiennes le 8 octobre 2003.
[…]
SECTION 4
REPRÉSENTATION
CONTRE RÉMUNÉRATION
13.1 (1) Sous réserve du paragraphe (2), il
est interdit à quiconque n'est pas un représentant autorisé de représenter une
personne dans toute affaire devant le ministre, l'agent ou la Commission, ou
de faire office de conseil, contre rémunération.
[…]
|
2. Refugee
Protection Division Rules, SOR/2002-228
|
INFORMATION AND DOCUMENTS TO BE
PROVIDED TO THE DIVISION
Claims for Refugee Protection
[…]
4. […]
Claimant's counsel
(4) A claimant who is represented by
counsel must, on obtaining counsel, provide the counsel's contact information
in writing to the Division and the Minister. If that information changes, the
claimant must without delay provide the changes in writing to the Division
and the Minister.
[…]
REFUGEE PROTECTION OFFICERS
Duties
16. The duties of refugee protection
officers are, as directed by the Division, to
(a) review files to
identify issues in a claim or other matter;
(b) conduct research and
collect and provide information;
(c) hold interviews,
prepare reports and make recommendations;
(d) participate in hearings
and conferences;
(e) present evidence and
call and question witnesses;
(f) make representations to
the Division; and
(g) do any other thing that
is necessary to ensure a full and proper examination of a claim or other
matter.
[…]
CONFERENCES
Requirement to participate at a
conference
20. (1) The Division may require a party
to participate at a conference to discuss issues, relevant facts and any
other matter in order to make the proceedings more fair and efficient. […]
[…]
NOTICE TO APPEAR
Notice to appear
22. The Division must notify a party in writing
of the date, time and location of a proceeding.
[…]
How to Make an Application
Form of application and time limit
44. (1) Unless these Rules provide
otherwise, an application must be made in writing and without delay. The
Division may allow a party to make an application orally at a proceeding if
the party with reasonable effort could not have made a written application
before the proceeding. […]
[…]
Application to change the location of a
proceeding
47. (1) A party may make an application to
the Division to change the location of a proceeding. […]
[…]
CHANGING THE DATE OR TIME OF A
PROCEEDING
Application to change the date or time
of a proceeding
48. (1) A party may make an application to
the Division to change the date or time of a proceeding.
Form and content of application
(2) The party must
(a) follow rule 44, but is
not required to give evidence in an affidavit or statutory declaration; and
(b) give at least six
dates, within the period specified by the Division, on which the party is
available to start or continue the proceeding.
If proceeding is two working days or
less away
(3) If the party wants to make an
application two working days or less before the proceeding, the party must
appear at the proceeding and make the application orally.
Factors
(4) In deciding the application, the
Division must consider any relevant factors, including
(a) in the case of a date
and time that was fixed after the Division consulted or tried to consult the
party, any exceptional circumstances for allowing the application;
(b) when the party made the
application;
(c) the time the party has
had to prepare for the proceeding;
(d) the efforts made by the
party to be ready to start or continue the proceeding;
(e) in the case of a party
who wants more time to obtain information in support of the party's
arguments, the ability of the Division to proceed in the absence of that
information without causing an injustice;
(f) whether the party has
counsel;
(g) the knowledge and
experience of any counsel who represents the party;
(h) any previous delays and
the reasons for them;
(i) whether the date and
time fixed were peremptory;
(j) whether allowing the
application would unreasonably delay the proceedings or likely cause an
injustice; and
(k) the nature and
complexity of the matter to be heard.
Duty to appear at the proceeding
(5) Unless a party receives a decision
from the Division allowing the application, the party must appear for the
proceeding at the date and time fixed and be ready to start or continue the
proceeding.
|
RENSEIGNEMENTS ET DOCUMENTS À FOURNIR À
LA SECTION
Demande d'asile
[…]
4. […]
Coordonnées du conseil
(4) Dès qu'il retient les services d'un
conseil, le demandeur d'asile transmet les coordonnées de celui-ci par écrit
à la Section et au ministre. Dès que ces coordonnées changent, le demandeur
d'asile transmet les nouvelles coordonnées par écrit à la Section et au
ministre.
[…]
AGENT DE PROTECTION DES RÉFUGIÉS
Fonctions
16. L'agent de protection des réfugiés
exerce, selon les instructions que lui donne la Section, les fonctions
suivantes:
a) l'examen du dossier afin
de déterminer les points litigieux soulevés dans une demande d'asile ou dans
toute autre affaire;
b) la recherche,
l'obtention et la transmission des renseignements;
c) la conduite d'entrevues,
la rédaction de rapports et la formulation de recommandations;
d) la participation à des
audiences et à des conférences;
e) la présentation de la preuve
ainsi que la convocation et l'interrogatoire des témoins;
f) la présentation
d'observations à la Section;
g) l'accomplissement de
toute autre tâche nécessaire à l'examen approfondi d'une demande d'asile ou
de toute autre affaire.
[…]
CONFÉRENCE
Convocation à une conférence
20. (1) La Section peut exiger qu'une
partie participe à une conférence pour discuter des points litigieux, des
faits pertinents de l'affaire ou de toute autre question afin que les
procédures soient plus équitables et efficaces. […]
[…]
AVIS DE CONVOCATION
Avis de convocation
22. La Section avise les parties par écrit
des date, heure et lieu d'une procédure.
[…]
Comment faire une demande
Forme de la demande et délai
44. (1) Sauf indication contraire des présentes
règles, toute demande est faite sans délai par écrit. La Section peut
permettre que la demande soit faite oralement pendant une procédure si la
partie n'aurait pu, malgré des efforts raisonnables, le faire par écrit avant
la procédure. […]
[…]
Demande de changement de lieu d'une
procédure
47. (1) Toute partie peut demander à la
Section de changer le lieu d'une procédure. […]
[…]
CHANGEMENT DE LA DATE OU DE L'HEURE
D'UNE PROCÉDURE
Demande de changement de la date ou de
l'heure d'une procédure
48. (1) Toute partie peut demander à la
Section de changer la date ou l'heure d'une procédure.
Forme et contenu de la demande
(2) La partie:
a) fait sa demande selon la
règle 44, mais n'a pas à y joindre d'affidavit ou de déclaration solennelle;
b) indique dans sa demande
au moins six dates, comprises dans la période fixée par la Section,
auxquelles elle est disponible pour commencer ou poursuivre la procédure.
Procédure dans deux jours ouvrables ou
moins
(3) Si la partie veut faire sa demande
deux jours ouvrables ou moins avant la procédure, elle se présente à la
procédure et fait sa demande oralement.
Éléments à considérer
(4) Pour statuer sur la demande, la
Section prend en considération tout élément pertinent. Elle examine notamment:
a) dans le cas où elle a
fixé la date et l'heure de la procédure après avoir consulté ou tenté de
consulter la partie, toute circonstance exceptionnelle qui justifie le
changement;
b) le moment auquel la
demande a été faite;
c) le temps dont la partie
a disposé pour se préparer;
d) les efforts qu'elle a
faits pour être prête à commencer ou à poursuivre la procédure;
e) dans le cas où la partie
a besoin d'un délai supplémentaire pour obtenir des renseignements appuyant
ses arguments, la possibilité d'aller de l'avant en l'absence de ces
renseignements sans causer une injustice;
f) si la partie est
représentée;
g) dans le cas où la partie
est représentée, les connaissances et l'expérience de son conseil;
h) tout report antérieur et
sa justification;
i) si la date et l'heure
qui avaient été fixées étaient péremptoires;
j) si le fait d'accueillir
la demande ralentirait l'affaire de manière déraisonnable ou causerait
vraisemblablement une injustice;
k) la nature et la complexité
de l'affaire.
Obligation de se présenter aux date et
heure fixées
(5) Sauf si elle reçoit une décision
accueillant sa demande, la partie doit se présenter à la date et à l'heure
qui avaient été fixées et être prête à commencer ou à poursuivre la
procédure.
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